No value for a pound of flesh: extending market-inalienability of the human body.

• Author: Wancata, Andrew

1. INTRODUCTION II. HISTORICO-LEGAL TREATMENT OF THE HUMAN BODY A. Doctrinal and Philosophical Theories on "Propertization" of the Human Body B. Case Study of the Human Body and its Parts as "Quasi" Property III. CONTEMPORARY LAWS AND POLICIES REGARDING SALES OF HUMAN ORGANS IV. CONTEMPORARY LAWS AND MARKET PRACTICES REGARDING SALES OF GAMETES V. ANALYSIS OF DISPARATE LEGAL TREATMENT OF HUMAN "PARTS" AND "PRODUCTS" VI. CONCLUSION I. INTRODUCTION

   Imagine that you are a destitute, lower-class laborer in Brazil. (1) As you are hard at work one day, a foreign man whom you have never seen before asks if you will sell one of your kidneys for an American woman dying of kidney failure. He offers you a sum of $25,000, and he assures you that all your travel and medical expenses will be covered. (2) Moved by the chance to help save a stranger's life and by the good fortune to make some quick (and much-needed) money, you excitedly agree to be flown to a hospital in South Africa to undergo the transplant procedure. But matters quickly sour. You receive only $6,000 of the promised sum, and when you return home, you find criminal charges filed against you for participation in an illegal organ trade. To make matters worse, you have begun developing health complications from the hurried procedure. (3)

   Now picture yourself as a female college student at an Ivy League institution in the United States. (4) One day as you are leafing through the school newspaper, an advertisement catches your eye: "$50,000 guaranteed for eggs. Must have blonde hair and blue eyes, have minimum SAT score of 1450, be no shorter than 5'6", be of attractive physique, and be in overall good health." Judging yourself compatible with these requirements, you follow up on the ad and begin the procedure to donate your eggs. However, the experience does not quite live up to the advertisement. Not only do you endure an extremely invasive procedure, including having to take hormone-stimulating drugs that possibly present unknown risks to your health, but you also receive much less than the promised $50,000. (5)

   Although these two situations at first glance appear worlds apart, the dilemmas suffered by their protagonists derive from a common source: federal, state and international statutory prohibitions on organ sales. In the United States and many countries throughout the world, selling non-regenerative organs for monetary gain constitutes a serious criminal offense. (6) Notwithstanding this strong ban on the sale of organs, United States citizens are permitted to sell other "parts" of their bodies, including blood, sperm, and eggs ("ova"), for market value because current statutes do not consider reproductive cells and other regenerative tissue "organs" or even within the ambit of "parts." (7) Rather, in most contexts, regenerative cells and tissue are thought of as "products" of the human body. In fact, the United States remains one of only a few industrialized nations that allow the sale of human reproductive cells ("gametes"). (8)

   Given the similarities between the unfortunate stories above, however, such a "Products vs. Organs" distinction is no longer tenable in this age of rapidly-developing medical research. The incongruous management of alienation of human body parts needs to be reconciled with traditional principles of property law. This note seeks to bring the legal status of gametes into line with that of organs using the framework of property rights. This note will argue that, since the law justifiably prohibits people from selling organs, it should likewise bar them from selling any parts of their bodies--even the products thereof (specifically sperm and ova)--as disposable personal property. This note will conclude with the proposition that a system of total market-inalienability and uncompensated donation of human body parts will best fulfill the economic goal of supplying organs and gametes to those in need of them while simultaneously protecting donors from any coercion of sale.

   Part II of this note will begin by surveying the philosophical and doctrinal underpinnings of property law as they relate to human beings and their bodies and will continue with an exploration of the impact, both theoretical and actual, of commodification on market behavior. Then, through case study at both the federal and state levels, Part II will assess the historical judicial hesitance against recognizing any outright property interests in the human body or its components. Part III will describe the current state of the law prohibiting market sales of human organs and factual data regarding organ donations. It will then move to a discussion of contemporary policies for and against the sale of "non-regenerative" organs.

   Part IV will explain why sales of gametes are contrastingly permitted in the United States and will position arguments supporting the sale and purchase of sperm and ova as distinguishable from organs. Finally, Part V will compare and analyze the preceding arguments and will argue that the statutory prohibition on monetary compensation for organs should extend uniformly to gametes. This paper will conclude with the proposition that the law should authorize only profit-less donations of either organs or gametes and only allow reimbursement costs to donors for expenses incident to the donation procedures.

2. HISTORICO-LEGAL TREATMENT OF THE HUMAN BODY

   1. Doctrinal and Philosophical Theories on "Propertization" of the Human Body

      In order to determine whether any property right in the human body exists, property itself should first attain a satisfactory definition. However, this task proves to be quite difficult, if not practically impossible, since property has always been an abstract concept at best. (9) Contrary to the common tendency to define property with respect to physical objects, property actually refers to "rights or relationships among people with respect to [those objects]." (10) And so, most property theorists envision property as a "bundle of rights"--a commingled group of separate rights gained when one acquires property. (11) Classically, these include the right to use property, the right to exclude others from using one's property, and the right to transfer or "alienate" property. (12) Regardless of whatever definition of property one uses however, property, as a societal vehicle in attributing wealth, must have its basis in some broader justifying theory. (13)

      Indeed, several theories were advanced to justify property fights. To begin with, John Locke espoused a theory of property grounded in principles of natural law. (14) In regard to human beings and property, Locke stated that all people by nature have a property interest in their own "person." (15) This right derived from one of Locke's central theses: people could own things external to themselves only because they first have ownership in their own bodies. (16)

      Similarly, Georg Frederic Hegel postulated that ownership of one's body necessarily precedes ownership of any external things. (17) However, Hegel diverged from Locke when maintaining that no absolute property rights in one's body could exist; (18) rather, human beings decide when and how they wish to relinquish their rights to "the members of [their] bod[ies]." (19) Thus, Hegel took Locke's natural rights theory and added the element of human choice into the calculus of defining property rights.

      However, a second property theory stands diametrically opposed to natural fights theory: utilitarianism. With Jeremy Bentham and John Stuart Mill as its primary advocates, utilitarianism generally holds that property fights exist only because human behavior and laws create and grant them. (20) For Mill, the ideal notion of property contained the fights to things that human beings produce by their own labor. (21) Accordingly, Mill reasoned that no property right in the human body could exist, since the body is not a product of human labor. (22) Furthermore, Mill lamented that the law "ha[s] made property of things which never ought to be property, and absolute property where only a qualified property ought to exist." (23) Thus, while early natural fights theorists assumed and almost took for granted that property fight exists in the human body, utilitarians contrarily denied that people have this right.

      With this divergent quandary in mind and in order to strike a balance between these two competing theories, in 1987 law professor Margaret Jane Radin, proposed her "personhood model" for property fights in a highly influential law review article. (24) Developing her model under the auspices of Kant and Hegel, Professor Radin promoted that the closer something is to the human identity and self, the less accurately it can be considered property. (25) In other words, those aspects, attributes, and qualifies of the human person--those that are so qualitatively vital to the concept of human identity, those that are quintessentially "human"--should never receive property status. Although Radin did not directly address the issue of whether the human body is property under this "personhood" paradigm, she appreciated that all body parts could be esteemed as so "integral to the [human] self' that they are essentially distinct from vulgar, fungible market commodities. (26)

      Crucial to Radin's thesis is the notion of separability: "[t]o conceive of something personal as fungible assumes that the person and the attribute, right, or thing, are separate." (27) In regard to human bodies and parts, separability translates like this: conceiving of a human organ, which likely would be deemed as truly personal to human self and identity, as "monetizable or completely detachable from the person ... is to do violence to our deepest understanding of what it is to be human." (28) For Radin, not unlike Mill in this respect, separability of the human person from the body portends the very real danger of viewing all other people as objects...